Free Speech on Private Websites - Challenges of the Musk Model for Social Media

Elon Musk has entered into a deal to purchase Twitter. He has suggested, quite expressly, that he intends to revisit Twitter's terms of use and moderation policies in a way to permit any speech that is not illegal.

Here's a widely-circulated Tweet to that effect:

By “free speech”, I simply mean that which matches the law.

I am against censorship that goes far beyond the law.

If people want less free speech, they will ask government to pass laws to that effect.

Therefore, going beyond the law is contrary to the will of the people.

— Elon Musk (@elonmusk) April 26, 2022

This is an incredibly simplistic analysis of 'the law' and of free speech generally. Free speech is a philosophical concept that has been integrated into many countries' constitutions. Usually, discussing it as a legal concept in the US or Canada, we're discussing speech that is not only 'legal', but 'constitutionally protected'. There are presumably gaps between those concepts where certain speech acts COULD be prohibited, but aren't. So this concept of free speech is not the same as that protected by the First Amendment or s.2(b) of the Canadian Charter.

Moreover, because of the nature of constitutional entrenchment and interpretation, it's not true either that the scope or extent of free speech are defined via democratic mandate.

And the problem gets even wider when you realize that free speech as a fundamental freedom has more to do with a freedom from interference by the state than about any positive assurance of a platform.

Musk's approach raises several questions, such as: How would he reconcile jurisdictional differences? Is he just talking about speech prohibited by statute, or would tortious speech (such as defamation) or speech that breaches contractual obligations (such as confidentiality or non-disparagement) also be engaged?

(Musk himself has ended up in hot water over his own Tweets that got the attention of the SEC and the NLRB. I've also seen some suggestions that his recent Tweets criticizing Twitter's existing enforcement actually breach the non-disparagement clause in his contract.)

In many ways, the biggest questions here are jurisdictional, because there are BIG differences regarding how different jurisdictions deal with speech restrictions and platform regulation. You've probably heard of "section 230" that gives platforms immunity relating to user content; that doesn't exist outside the US. You may also have heard that hate speech is constitutionally protected. Also not largely true outside the US.

So, in the American context, Musk's statements seem to suggest that he's going to give close to carte blanche for hate speech, defamatory speech, and other types of actionable speech, so long as it doesn't cross the line into speech actually prohibited in the US.

But nearly 2/3 of Twitter's users are outside the United States. And if Twitter becomes a place where white supremacists can promote ethnogenocide with impunity, then that's going to run into legal problems in many other parts of the world.

Outside the US

An Evolving Tort Duty to Moderate

In 2008, a prominent Canadian lawyer named Richard Warman sued several defendants for defamation in connection with defamatory remarks posted to a right-wing forum called 'freedominion'. The defendants included the operators of the website.

Following a jury trial in or about 2013, Warman was successful. He was awarded $42,000 in damages, plus another $85,000 in legal fees. He also obtained an injunction against further defamatory posts on the site.

The operators of the website appealed - among other things - the injunction, arguing that it would altogether prevent them from hosting online discussions, because they couldn't control what other people posted.

Pending the appeal, the website operators shut down and started crowdfunding, making their appeal argument to the public:

This means we are barred for life from ever operating a public forum or a blog (even about cookie recipes) where the public can comment. If we do so, any one of Warman’s handful of supporters could, and probably would, use a common proxy server to avoid being traced, plant a negative comment about Warman on our site, and we would both be charged with contempt of court. If that happened --unlike in the Ottawa courtroom where we were blocked at every turn from presenting a defense-- we actually would have no defense. We would both go to jail.

In a blog I maintained at the time (this is early 2014), I disagreed with this assessment of the effect of the injunction:

If they took reasonable precautions against the publication of prohibited defamatory statements about Warman (setting clear rules about defamatory speech, moderating the forum responsibly, and deleting any such defamatory statements as soon as they become aware of them...i.e. do the things that would have prevented them from getting sued in the first place), then I simply don't see how the test for contempt could be met.

(I also queried the bona fides of their fear that defamatory posts would be made strategically by Warman's supporters: In light of the findings of the jury, that seemed less likely than one of their forum's ordinary participants saying something malicious and defamatory.)

In 2015, the Ontario Court of Appeal denied their appeal, along similar lines of reasoning:

this fear rests on a misapprehension of the basis for liability of a forum host for libelous statements posted by a third party.  Liability in that circumstance turns on whether the statements at issue have been deleted by the host after reasonable notice to delete has been given.

This, among other cases, provides a solid basis for thinking that platforms operating in Canada have a positive duty to moderate: They will likely not be held liable for a user post simply on the basis that it was made, provided that they can show that the post violated their terms of service and that they addressed it when it was brought to their attention.

This is the difference between imperfect moderation following generally reasonable policies, versus an active decision to not moderate in the name of 'free speech'. Right now, Twitter has voluminous policies dealing with violent content, hate speech, abuse, harassment, etc. Paring those down into prohibitions only on strictly illegal content means that Musk's Twitter would literally invite content outside of that.

In Giustra v. Twitter, the BC Court of Appeal concluded that Canadian courts have jurisdiction to entertain claims against Twitter in defamation. (The preconditions for a finding of liability against Twitter is yet to be determined, but I think Warman is likely analogous.)

Moreover, it's unlikely that Twitter could simply get around this by setting content rules based on the jurisdiction from which a post is made, because the posts themselves circulate more widely: In a case like Giustra, where the plaintiff has ties and reputation in both California and BC, there's some question about delineating 'where' which defamatory statement occurred. But if you consider a hypothetical scenario of a well-respected pediatrician in Ontario, where some Twitter user from the South Pacific island of Erewhon starts publishing allegations that the pediatrician is abusing children, the good doctor's tort claim would probably arise in Ontario, with respect to reputational damages suffered in Ontario.

(Enforcement raises a series of other questions: The US doesn't generally recognize Canadian defamation judgments, so any enforcement of a judgment against Twitter would have to be against domestic assets, income streams, and operations...but suffice it to say that it's unlikely that Twitter could continue to serve Canadian users or advertisers at all if it decided to start ignoring Canadian court orders.)

Criminal Speech

Social media almost has to stay out ahead of criminal speech thresholds, in the absence of statutory immunity, because there are ALWAYS threshold questions.

In Canada, for example, it's a criminal offence to publicly incite hatred against an identifiable group where it is likely to lead to a breach of the peace. "Identifiable group" is pretty well-defined, but whether or not a statement 'incites hatred' gets into areas of factual interpretation, as does whether or not the statement is 'likely to lead to a breach of the peace'.

To stay on-side here, without barring speech beyond that prohibited by law, Twitter would actually have to conduct its own legal analysis of these issues. And, largely, it would have to get them right.

Ordinarily, a lawyer is going to recommend that a platform err on the side of good taste: If there's some question about whether a judge would find the speech to be illegal, just...don't allow it. But if the goal is to NOT prohibit lawful speech, then 'erring on the side of caution' runs against that objective. And if you're not erring on the side of caution, then every so often you're going to err the other way. There may be circumstances where you might still be able to rely on a mens rea defence, but...it's going to depend on the type of error.

Proprietary and Quasi-proprietary Interests

I expect that Musk will likely maintain Twitter's policies on intellectual property: Musk himself has said that he doesn't have much use for patents, and he HAS gotten into a tiff about somebody else's copyright before, but abusing IP rights (i.e. patents, trademarks, and - most importantly in the social media context - copyright) probably falls squarely enough into his paradigm of illegality.

But the tougher question relates to something that Musk DOES care more about: Trade secrets.

I can't tell you how the US treats trade secrets. I *can* tell you how Canadian courts view them: Weirdly. The lead case deals with the tomato and clam juice base typically used in a Caesar cocktail. I'm not even kidding.

The Supreme Court of Canada created a 'sui generis' treatment for trade secrets - not quite property, but not entirely...not. One of my future research papers will push on that a bit harder to argue, most likely, that they aren't property at all; they're a contractual construct, and the only rights that an organization has to protect its trade secrets against disclosures arise from contract and equitable fiduciary obligations - which REALLY limits the extent to which litigants can rein in use/disclosure of trade secrets by unrelated third parties. If I buy your trade secrets from your former employee knowing that they're your trade secrets, you probably have a cause of action against me. However, if your former employee posts your trade secrets publicly and I find them through that act of publication, there are not likely to be any restrictions on my further usage. You have no rights against me in contract, tort, equity, or any statutory framework - and that's true even if I start selling YOUR secret sauce under MY brand.

So the extent to which Musk's Twitter would enforce contractual speech restraints is a question that looms large: If my trade secrets get posted to Twitter - by an insider or somebody who obtained them from an insider - and I complain to Twitter about it, will they remove that content? Currently, Twitter's policies are probably broad enough to prohibit that kind of post - at least, most of the time. I expect that, once Twitter's on notice of the problem, their enforcement mechanism is at least supposed to take action.

But if publication of trade secrets is just a contractual violation, is it 'illegal' in the sense contemplated by Musk's 'will of the people' paradigm? What about other confidential information, like the particulars of a confidential settlement? Or disparaging remarks in violation of a contractual non-disparagement agreement?

There's (not) an App for That

Another huge problem for Musk's theory of a free-for-all zone is that the mainstream internet is heavily integrated with gatekeepers.

In 2016, a social media app called Gab launched, similar to Twitter but marketing itself as being committed to 'free speech'. However, both Apple and Google banned it from their respective app stores, because of pornographic content and/or hate speech. (The Wikipedia article on it suggests that it's been widely criticized for...pretty much the reasons you'd expect.) It's tried to find workarounds to the app ban, but they're estimated to have about 100,000 active users - about 1 for every TWO THOUSAND users on Twitter.

In other words, Musk's vision of Twitter has been tried, and it has run into some serious problems, not just in terms of user experience (which is a whole other issue) but also in terms of its ability to access its own market via an internet infrastructure that lacks its enthusiasm about letting nazis have their say.

Conclusion

There have ALWAYS been corners of the internet with limited or no content moderation, where people can say what they want. There's a reason why those corners of the internet are not the ones who develop a mainstream following: Because that doesn't create an environment most people want to be part of. (Twitter, with its 200 million regular users, is relatively small among major social media, but it's orders of magnitude larger than any 'free speech' site has ever managed to get.)

We've seen what happens to platforms that dedicate themselves to the unaccountable model of free speech, in Gab and 4chan.

They attract a small following of people at the extremes; they alienate people who find those extremes to be toxic; they get rejected by other service providers who many users rely upon to facilitate access to web services; and, when that's not enough to convince hosts to restrict harmful speech, they get sued.

If Musk really intends to go ahead with this fReEdOm model of social media, he should probably think about how (whether) it's going to be different, and why he thinks it will be more successful, than the various platforms that have tried it before. (Just because it's starting with a 200M user base? How many of those 200M are dedicated enough to stay if Twitter becomes the new Gab?)

One of three things will happen:

1. Musk will realize that he needs to moderate his vision of Twitter for it to remain viable, and will actively enforce terms of service comparable to those that presently exist;

2. Musk will realize that the acquisition is a mistake, and will scuttle the deal; or

3. Musk will do exactly what he says he's planning to do, and Twitter will quickly wither - both in the sense that its user base will shrink, and in the sense of facing expensive litigation with onerous liabilities in any number of jurisdictions. With his carrying costs of the financing for the acquisition, and the fact that Twitter is already NOT profitable...

...I'm not sure this is a bankruptcy-level hazard for Musk, but if he's forced to liquidate significant amounts of his (probably heavily overvalued) Tesla stock to carry Twitter, the resulting correction to Tesla's price would cost him more than the $44B associated with the acquisition.

*****

Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.